Sri Ningaraju vs Sri Ningaiah on 5 November, 2012

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Karnataka High Court

Sri Ningaraju vs Sri Ningaiah on 5 November, 2012

Bench: Mohan Shantanagoudar

                            -1-


  IN THE HIGH COURT OF KARNATAKA AT BANGALORE

      DATED THIS THE 5th DAY OF NOVEMBER, 2012

                         BEFORE

 THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR

                 R.S.A. NO.2770 OF 2011

BETWEEN :

1. Sri Ningaraju
   S/o Doddaiah
   Aged about 62 years

2. Smt. Lakshmamma
   D/o Doddaiah
   Aged about 60 years

3. Sri Parvathaiah
   S/o Doddaiah
   Aged about 58 years

4. Sri Lingaraju
   S/o Doddaiah
   Aged about 56 years

5. Sri Jayanna
   S/o Doddaiah
   Aged about 54 years

  All are residing at
  Channapura hobli
  Kasaba Hobli, Belur Taluk
  Hassan District-573131.                 ..Appellants

(By Sri N.R. Naik & M. Prakash, Advs.,)
                               -2-


AND :

1. Sri Ningaiah
   S/o Maraiah
   Age Major

2. Sri Muttaiah
   S/o Maraiah
   Age Major

  Both are residing at
  Channapura Village
  Kasaba Hobli, Belur Taluk
  Hassan District-573 131.               ..Respondents

        This RSA is filed under Section 100 of CPC., against
the Judgment and Decree dated 29.9.2011 passed in RA
No.3/2010 on the file of the Senior Civil Judge, Belur
dismissing the appeal and confirming the Judgment and
Decree dated 8.2.2010 passed in O.S.No.135/2002 on the
file of the Civil Judge (Jr.Dn.), Belur.

       This RSA coming on for admission, this day the Court
delivered the following:-

                     JUDGMENT

This is the plaintiffs' second appeal against the concurrent findings of fact arrived at by both the Courts below.

2. Case of the plaintiffs is that they are the owners of the property bearing Sy.No.7/7 to an extent of 11 guntas in Channapura Village, Belur Taluk and -3- they are in possession of the same; such portion of the property had fallen to the share of their father in the partition that has taken place about 45 years prior to filing of the suit. Since there was obstruction by the defendants, the present suit is filed for declaration and injunction. Case of the defendants is there was no partition between the family members and the property in question does not belong to the plaintiffs.

3. Both the Courts below on evaluation of the material on record, have concurrently concluded that there is no evidence relating to partition among the family members and also there is no evidence that the suit property to an extent of 11 guntas in Sy.No.7/7 has fallen to the share of the plaintiffs' father or the plaintiffs.

4. The plaintiffs relied on an oral partition and from the date of such oral partition they are in possession. There is neither registered deed of -4- partition nor the memorandum of partition. Both the Courts below on evaluation of the material on record, have concurrently concluded that the oral evidence is not sufficient to prove that the partition has taken place and in the said partition, the property in question is allotted in favour of the plaintiffs' father.

No question of law, much less no substantial question of law arises for consideration in this appeal. The appeal fully rests on the appreciation of the material on record to find out whether there was oral partition or not between the family members and such appreciation of evidence has justifiably been done by the Courts below.

Hence, no interference is called for. Appeal stands dismissed at the stage of admission itself. -5-

If the plaintiffs have got any right over the suit property, they are at liberty to file a suit for partition, if they so choose.

SD/-

JUDGE *ck/-

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